Rajesh Kumar S/O Saryug Prasad @APPELLANT@Hash State Of Bihar and ors

ANIL KUMAR UPADHYAY

Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State.

The petitioner has earlier approached this Court in CWJC No. 12951 of 2012 which was disposed of by order dated 30.7.2012, Annexure-8 in the

following terms:-

“The Court finds substance in both the contentions on behalf of the petitioner. If by reason of acrimony between the petitioner and Bisheshwar

Prasad Yadav, a common order of punishment was passed, there cannot be disparity in punishment between him and the petitioner. If the allegations

against them were common, there shall have to be parity in punishment/exoneration. The objection that the departmental proceeding was concluded

contrary to law has been noticed but not decided by the Appellate Authority. The order dated 13.4.2012 is set aside. The matter is remanded to the

appellate authority to decide the Appeal afresh on both grounds. Let such fresh decision be taken within a maximum period of three months from the

date of receipt/production of a copy of this order.â€​

After the aforesaid order, the appellate authority passed order dated 21.11.2012 as contained in Annexure-10 which is under challenge in the instant

writ petition. From perusal of Annexure-10 it would be evident that the appellate authority has perpetuated the illegality committed by the disciplinary

authority vide order dated 21.12.2006, as contained in Annexure-4.

From perusal of the order of the disciplinary authority as contained in Annexure-4, it appears that the petitioner has been inflicted major punishment of

stoppage of one increment with cumulative effect. The law in the matter of inflicting major punishment is well settled. The Bihar Government Servant

(Classification, Control and Appeal) Rules, 2005 provides a detailed procedure for inflicting major punishment which has not been followed in the

instant case.

Learned counsel for the petitioner submits that the petitioner has neither been issued any second show cause notice nor provided with a copy of the

enquiry report and as such the entire action of the respondents inflicting major punishment is nullity in the eye of law. He further submits that in the

instant case the Headmaster and the petitioner as Assistant Teacher were inflicted punishment vide Annexure-4 by the disciplinary authority but the

appellate authority has exonerated the Headmaster and maintained the punishment inflicted against the petitioner.

The order in breach of statutory rule for departmental proceeding is nullity. In addition thereto after the judgment in the case of Union of India and ors

vs. Mohd. Ramzan Khan: AIR 1991 SC 471 which was affirmed by the Constitution Bench in the case of Managing Director Ecil Hyderabad vs B.

Karunakar Etc (1993) 3 SCC 727, the order of punishment without second show cause notice cannot sustain. The appellate order contained in

Annexure-10 also suffers from the same vice of non-compliance of principles of natural justice and fair play and in teeth of statutory rule for

imposition of major punishment as punishment was inflicted and vide Annexure-10 the appellate authority affirmed the same and as such the Court is

constrained to hold that Annexure-10 also cannot sustain. Accordingly, the order of the disciplinary authority, Annexure-4 and the order of the

Appellate authority, Annexure-10 are both quashed. The respondents are directed to restore the benefit of increment as if Annexures 4 and 10 never

existed. Necessary consequential order of grant of such benefit must be passed by the respondents within a maximum period of four months from the

date of receipt/production of a copy of this order. However, it is made clear that quashing of Annexures 4 and 10 will not disentitle the respondents

from taking fresh decision after following the norms for imposition of major punishment.

With the aforesaid, the writ petition stands allowed and disposed of.